Singh v Minister for Immigration

[2014] FCCA 1858

FEDERAL CIRCUIT COURT OF AUSTRALIA

SINGH v MINISTER FOR IMMIGRATION & ANOR [2014] FCCA 1858

Catchwords:
MIGRATION – Application for Student (Temporary) (Class TU) visa – where criterion not met at time of application – no error established – application dismissed.

Legislation:

Migration Regulations 1994, cl.572.223, 572.223(2), 572.223(2)(a), 572.223(2)(a)(iii), 572.233, 5A101, 5A405, 5A405(1), 5A405(2), reg.1.41

Applicant: HARJEET SINGH

First Respondent: MINISTER FOR IMMIGRATION & BORDER PROTECTION

Second Respondent: MIGRATION REVIEW TRIBUNAL

File Number: BRG 342 of 2014

Judgment of: Judge Jarrett

Hearing date: 11 August 2014

Date of Last Submission: 11 August 2014

Delivered at: Brisbane

Delivered on: 20 August 2014

REPRESENTATION

The Applicant appearing in person

Solicitor for the Respondents: Ms Kelly

Solicitors for the Respondents: Clayton Utz

ORDERS

1. The application filed on 17 April, 2014 is dismissed.

2. The applicant pay the first respondent’s costs of and incidental to the application fixed in the sum of $6,646.00.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT BRISBANE

BRG 342 of 2014

HARJEET SINGH

Applicant

And

MINISTER FOR IMMIGRATION & BORDER PROTECTION

First Respondent

MIGRATION REVIEW TRIBUNAL

Second Respondent

REASONS FOR JUDGMENT

1. Mr Singh seeks judicial review of a decision of a migration review tribunal which affirmed a decision of a delegate of the first respondent made on 9 July, 2012 to refuse his application for a Student (Temporary) (Class TU) visa. 

2. The first respondent opposes the application and seeks orders dismissing the application with costs.  The second respondent enters a submitting appearance.

3. Despite directions to do so, the applicant has filed no written submissions in support of his application.  The first respondent has filed written submissions and I have been assisted by those.

The tribunal’s decision

1. On 14 March, 2014 the tribunal determined to affirm the delegate’s decision to refuse the applicant the visa for which he had applied.

2. As the tribunal explained:

   2. The applicant applied to the Department of Immigration for the visa on 5 March 2012. At the time of lodgement, Class TU contained a number of subclasses. With limited exceptions not relevant to this case, the subclass that can be granted to an applicant who applies as a student depends upon the type of course in which he or she is enrolled or has an offer of enrolment as his or her principal course, and the corresponding subclass for which that type of course has been specified by the Minister under r.1.40A of the Migration Regulations 1994 (the Regulations).

3. After having regard to the course in which the applicant held enrolment, the tribunal determined that the relevant visa subclass for the applicant’s purposes was subclass 572.  No issue is taken by the applicant with that determination.

4. The applicant needed to satisfy certain criteria to secure the grant of his visa.  Some of those criteria needed to be satisfied as at the time he made his application for the visa.  Others needed to be satisfied at the time of the decision concerning the grant of the visa.  One of the criteria that he had to satisfy at the time of the decision concerning his application was contained in cl.572.223 contained in Schedule 2 to the Migration Regulations 1994.  That criterion was, at the relevant time, as follows:

   572.223

   (1)  The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:

   (a)  the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:

   (i)  the applicant’s circumstances; and

   (ii)  the applicant’s immigration history; and

   (iii)  if the applicant is a minor—the intentions of a parent, legal guardian or spouse of the applicant; and

   (iv)  any other relevant matter; and

   (b)  the applicant meets the requirements of subclause (2).

   (2)  An applicant meets the requirements of this subclause if:

   (a)  the applicant gives the Minister evidence in accordance with the requirements mentioned in Schedule 5A for the highest assessment level for the applicant; and

   (b)  the Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student, having regard to:

   (i)  the stated intention of the applicant to comply with any conditions subject to which the visa is granted; and

   (ii)  any other relevant matter; and

   (c)  the Minister is satisfied that, while the applicant holds the visa, the applicant will have access to the funds demonstrated or declared in accordance with the requirements in Schedule 5A relating to the applicant’s financial capacity.

5. More particularly, cl.572.223(2)(a) was of interest to the tribunal.  That subclause refers to an assessment level.  That is a reference to an assessment level specified by the Minister for the purposes of reg.1.41 of the Regulations.  Again, as the tribunal explained:

   17. The assessment level that applies to the applicant is the highest assessment level at the time of application for the relevant course of study for the subclass of visa: r.1.42. ‘Assessment level’, and ‘highest assessment level’ is defined in r.1.03. ‘Assessment level’ means the level of assessment (being 1, 2, 3, 4, or 5) specified by the Minister for a kind of passport. The highest assessment level for a single course of study that is a registered course, is the assessment level for that course of study. If the applicant is undertaking 2 or more registered courses of study, the highest assessment level is the assessment level for those courses (excluding any ELICOS course) that has the highest number.

6. The assessment level that applied to the applicant was assessment level 4.  To meet cl.572.223(2), the applicant needed to give evidence to the tribunal in accordance with the requirements set out in Schedule 5A of the Regulations demonstrating that he met it.  Clause 5A405 was the relevant clause from Schedule 5A.  Relevantly, it provided as follows:

   5A405Financial capacity

   (1)  The applicant must give, in accordance with this clause:

   (a)  evidence that the applicant has funds from an acceptable source that are sufficient to meet the following expenses for the first 24 months:

   (i)  course fees;

   (ii)  living costs;

   (iii)  school costs; and

   … 

   (2)  In this clause:

   acceptable individual means one or more of the following:

   (a)  the applicant;

   …

   funds from an acceptable source means one or more of the following:

   (a)  if the applicant:

   (i)  has successfully completed at least 75% of the requirements for his or her principal course; and

   (ii)  has applied for the visa in order to complete the course; and

   (iii)  does not propose to undertake any further course;

   a money deposit held by an acceptable individual;

   (aa)  if paragraph (a) does not apply—a money deposit that an acceptable individual has held for at least the 3 months immediately before the date of the application;

   …

1. The tribunal determined that the applicant needed to demonstrate that he had access to $28,400 for the purposes of cl.5A405(1).  The applicant takes no issue with that determination.

2. The applicant’s case was that he would support himself from a workers’ compensation payment he received of $36,300 which was paid in two instalments in November, 2013 and on 7 February, 2014. As at 1 March, 2014 he had an account balance of $32,315. That amount was sufficient to cover his costs as assessed by the tribunal.

3. However, the tribunal was not satisfied on the evidence that the applicant had shown that the funds to which he had access were ‘funds from an acceptable source’.  Because the applicant had not held the deposit for at least the 3 months immediately before the date of the application, the tribunal determined that the applicant did not provide evidence to satisfy cl.572.233 of Schedule 2 of the Regulations in the way required by cl.5A405 of Schedule 5A of the Regulations. His visa application was made on 5 March, 2012. The relevant 3 month period was the three months up to 5 March, 2012.

4. The tribunal explained to the applicant that he needed to demonstrate that he held a sufficiently sized money deposit for at least 3 months prior to the visa application.  The tribunal allowed the applicant further time after the hearing to show that he had access to funds and that the deposit was held more than three months immediately prior to his application.

5. However, despite providing further material, the evidence so provided did not show that the funds relied on by the applicant in relation to the compensation payments were held more than 3 months prior to the application.

6. Accordingly, the tribunal concluded that the applicant had not provided evidence in accordance with the financial capacity requirements and did not therefore satisfy clause 572.223(2)(a)(iii) of the Migration Regulations.

Grounds of review

1. The applicant’s grounds of review are:

   I have source of income. I have money in my Australian bank account. Money came from injury composition according to date of settlement conference my funds are more than three months old.

2. In oral argument before me, the applicant argued that because he had settled his workers’ compensation claim and the defendant to that claim had agreed to pay him an amount in respect of his claim, he held a money deposit for at least 3 months prior to his application for the relevant visa.  That is to say, he argued that an agreement to pay money was the same as a money deposit for the purposes of cl.5A405(2) of Schedule 5A to the Regulations.

3. There is some superficial attraction to the argument.  The nature of the relationship between a bank and its customer who has placed funds on deposit with the bank is generally seen as a relationship of debtor and creditor.  Having struck an agreement with the target of his workers’ compensation claim (or its insurer more likely), it is likely I think that a debtor/creditor relationship arose in respect of the settlement funds.  The similarity of the underlying legal relationship might have been sufficient to conclude that the applicant had demonstrated that he held a money deposit at the relevant time.  A difficult argument no doubt, but not one that could have be discounted out of hand were it not for some other matters that appear in the Regulations.

4. Regulation 5A101 deals with definitions.  The following terms are defined:

   financial institution means a body corporate that, as part of its normal activities:

   (a)  takes money on deposit and makes advances of money; and

   (b)  does so under a regulatory regime, governed by the central bank (or its equivalent) of the country in which it operates, that the Minister is satisfied provides effective prudential assurance.

   …

   money deposit means a money deposit with a financial institution.

5. Those definitions, however, mean that the applicant’s argument cannot succeed.  Even if he had entered into a settlement agreement in respect of his workers’ compensation claim, there was nothing to suggest that there was a deposit of money with a body corporate that, as part of its normal activities took money on deposit and made advances of money under a regulatory regime, governed by the central bank (or its equivalent) of the country in which it operated, that the Minister was satisfied provided effective prudential assurance.

6. Moreover, as the first respondent points out, the tribunal’s finding about this matter was a finding of fact that was plainly open to the tribunal on the material before it.  The finding was not unreasonable, illogical or irrational.

Conclusion

1. I accept the first respondent’s argument that the application filed 17 April, 2014 does not reveal any jurisdictional error in the tribunal’s decision.

2. The application for review should be dismissed with costs.

I certify that the preceding twenty-three (23) paragraphs are a true copy of the reasons for judgment of Judge Jarrett delivered on 20 August, 2014

Associate: 

Date:         20 August 2014